An individual does not have to be successful in committing an armed robbery to face serious criminal penalties in Michigan. “Any person, being armed with a dangerous weapon, or any article used or fashioned in a manner to lead a person so assaulted reasonably to believe it to be a dangerous weapon, who shall assault another with intent to rob and steal shall be guilty of a felony, punishable by imprisonment in the state prison for life, or for any term of years.” MCL 750.89.
A person is guilty of assault with intent to commit armed robbery if the prosecutor can prove all of the following elements beyond a reasonable doubt (Michigan Criminal Jury Instruction 18.3):
- First, that the individual assaulted the victim. There are two ways to commit an assault. Either the individual must have attempted or threatened to do immediate injury to the victim, and was able to do so, or the individual must have committed an act that would cause a reasonable person to fear or apprehend an immediate injury.
- Second, that at the time of the assault, the individual was armed with a weapon designed to be dangerous and capable of causing death or serious injury; OR with any object capable of causing death or serious injury that the individual used as a weapon; OR with any other object used or fashioned in a manner to lead the person who was assaulted to reasonably believe that it was a dangerous weapon.
- Third, that at the time of the assault the individual intended to commit robbery. Robbery occurs when a person assaults someone else and takes money or property from him or her or in his or her presence, intending to take it from the person permanently. It is not necessary that the crime be completed or that the individual have actually taken any money or property. However, there must be proof beyond a reasonable doubt that at the time of the assault the individual intended to commit robbery.
The crime of assault with intent to commit armed robbery is a “specific intent crime”, meaning that the prosecutor must prove as an element of the crime that the defendant intended to commit armed robbery at the time of the assault. People v Joeseype Johnson, 407 Mich 196, 219; 284 NW2d 718 (1979). Otherwise, the conviction cannot be sustained. Despite all of the technology available to police and prosecutors, they do not have mind-readers that can testify to a jury what the defendant was thinking. However, intent can be inferred from circumstantial evidence presented by the prosecutor. For example, statements that the defendant made that he wanted the property in possession of the victim, attempts to acquire said property from the defendant before the crime, and the acquisition of the dangerous weapon shortly before the robbery can all suggest an intent to rob.
In addition, armed robbery itself is a specific intent crime requiring proof that the defendant intended to permanently deprive the owner of his or her property. In People v Harverson, 291 Mich App 171; 804 NW2d 757 (2010), the defendant attempted to argue that his robbery conviction should be vacated because he only walked away with the victim’s glasses and refused to steal any other items, so the prosecutor failed to show that he intended to permanently deprive the victim of his property. The Michigan Court of Appeals disagreed:
- “[T]o permanently deprive in the context of [robbery] does not require, in a literal sense, that a thief have an intent to permanently deprive the owner of the property. Rather, the intent to permanently deprive include the retention of property without the purpose to return it within a reasonable time or the retention of property with the intent to return the property on the condition that the owner pay some compensation for its return.” Id at 178.
In that case, the defendant confronted the victim for the purpose of retrieving a cell phone. When the victim denied knowledge of the cell phone, the defendant “snatched” his glasses and hold him, “you get these back when we get the phone back”. In other words, the defendant intended to retain the glasses and only return them on the condition of the cell phone being returned. The Michigan Court of Appeals found that this was sufficient evidence to show intent to rob.
The “intent to rob” does not have to be directed at the person assaulted. In People v Harris, 110 Mich App 636, 643; 313 NW2d 354 (1981), the Michigan Court of Appeals found that “[a] more reasonable interpretation would be that the assault be committed as a means to further the intended robbery, be it of the assaulted person or another.” Further, in People v Needham, 8 Mich App 679, 683-684; 155 NW2d 267 (1967), the Michigan Court of Appeals found that an armed robbery can be perpetrated even if the victim of the robbery is not the actual owner, provided that the victim has a claim of right superior to that of the robber (e.g. agent or employee of the owner). If the person assaulted was not the owner or possessor of the property to be stolen, his or her presence as an obstacle that prevents the successful completion of the robbery can establish the intent to rob.
The charge of assault with intent to rob is a serious felony offense that can cause you to spend the rest of your life in prison. You need the talents of a skilled criminal defense lawyer from the very beginning of the case to protect your rights. Some defenses that can be asserted against this charge include, but are not limited to:
- Mistaken Defense or Alibi: The defendant may present evidence that he or she was in another location when the assault occurred so he or she was falsely identified. Defense counsel must provide sufficient notice ahead of trial of the witnesses he or she intends to establish the alibi.
- Self-Defense: The assault with intent to rob may be justified under circumstances where you were trying to disarm another person by force to protect yourself or others. “An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.” MCL 780.972(2).
- Intoxication: Assault with intent to rob is a specific intent crime as it requires proof that the defendant intended to commit a robbery. Generally, voluntary intoxication is not a defense to a general intent crime. However, a specific intent crime “charged cannot be committed unless the actor entertained a specific intent (e.g. robbery) at the time the crime was committed, he is not guilty if he did not entertain that intent by reason of intoxication.” People v Kelley, 21 Mich App 612; 176 NW2d 435 (1970).
- Duress: Assault with intent to rob may be justified on the basis of duress if the defendant can present some evidence where the jury can conclude the following: “A) the threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm; B) the conduct in fact caused such fear of death or seriously bodily harm in the mind of the defendant; C) the fear or duress was operating upon the mind of the defendant at the time of the alleged act; and D) the defendant committed the act to avoid the threatened harm.” People v Lemons, 454 Mich 234, 247; 562 NW2d 447 (1997). Furthermore, the defendant must present some evidence that the threat was present and imminent, that the threat did not arise from the negligence or fault of the defendant, and that the defendant did not fail to use a reasonable opportunity to escape.
- Lack of Intent to Rob: Even when the defendant does not deny assaulting the victim, a conviction cannot occur if there was no intent to rob. The defendant can argue that the assault only occurred due to hostile feelings, provocation or an extreme emotional response but not for the purpose of taking property. Assault with a dangerous weapon is a felony, but it is only punishable by up to 4 years in prison instead of life behind bars.
The stakes are too high to settle for anything less than the best legal representation in your corner. You get once chance to properly defend against a criminal offense before you risk serious prison time, so get the best advantage from the very beginning. If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
